"Seller", as used herein means the addressee on this purchase order. "Buyer", as used herein, means PlayCore.
2) ORDER AND ACCEPTANCE
Verbal orders - No claimed verbal order by Buyer shall bind Buyer unless confirmed by Buyer with written purchase order.
a) Seller shall acknowledge or accept this purchase order in writing by executing and returning the attached acknowledgement copy. Buyer shall have the right and option to cancel this purchase order at any time before actual receipt of written acceptance or acknowledgment.
b) This purchase order is subject only to the instructions terms, conditions, specifications and warranties appearing on both sides of the "Original" copy hereof.
c) Any acknowledgment or acceptance which contains terms, conditions, specifications, or warranties which are in addition to or inconsistent with these Terms and Conditions (which additions and/or inconsistencies are hereby specifically objected to), will be considered a counter offer and will not be binding unless agreed to in writing by Buyer, and
d) Commencement of performance by Seller in the absence of Buyer's acceptance of the counter offer will constitute Seller's acceptance hereof without change.
4) MATERIALS AND WORKMANSHIP
a) QUALITY - All materials used in the goods delivered under this purchase order shall be in conformity with applicable drawings, specifications, CPSIA (Consumer Product Safety Improvement Act) and requirements with respect there to. Seller shall maintain test data to substantiate compliance with the foregoing; and Seller's manufacturing processes and inspection system shall be subject to on-site review and verification by representatives of Buyer during performance of this purchase order.
b) SUBSTITUTIONS OR CHANGES - Any substitution or changes (other than minor substitutions or changes which do not affect form, fit, function or reliability made by Seller in relation to any goods or materials ordered hereunder, including substitutions or changes in i) design, ii) materials or workmanship, or iii) the processes employed by Seller in the production thereof, following Buyer's approval of the original design, materials, workmanship or processes either by written notice, prior purchase and acceptance of the item, or submission of initial samples to Buyer, shall be disclosed to and approved in writing by Buyer in advance of any shipment hereunder. Any first time material used to produce product requires safety data sheets (SDS) to be forwarded and approved before delivery of goods to Buyer.
c) WARRANTY - Seller warrants that all goods or materials covered by this purchase order will be of merchantable quality, will be fit for any specific purpose made known to Seller by Buyer, will conform to the drawings, specifications or other description related thereto, if any, and will be of good quality, material and workmanship and free from defects. These warranties also shall constitute conditions precedent, shall survive inspection, acceptance and payment, and shall remain in effect for a period of time consistent with the warranty period offered by Buyer on the product in which such goods or materials are used. This warranty shall run to the Buyer and to the customers and users of its products.
a) TIME OF THE ESSENCE - Time of delivery is of the essence of the contract arising from this purchase order.
b) COMPLETE DELIVERY - Delivery shall not be deemed complete until goods or materials have been received by Buyer, inspected and accepted by Buyer, notwithstanding any agreement to pay freight, express or other transportation charges. Buyers' count will be accepted as final and conclusive on all shipments.
c) OVERAGES - Quantity of goods or materials ordered must not be exceeded without permission first obtained from Buyer. Excess quantities shipped without permission first obtained from Buyer may be returned at Seller's expense and risk, including transportation both ways and all handling charges.
d) RIGHT OF REFUSAL - Buyer reserves the right to refuse or return any goods or materials and to cancel all or any part of this purchase order, if Seller delivers early, delivers late, or fails to deliver, all or any part of the goods or materials in accordance with the terms of this purchase order; and any costs in keeping such goods or materials prior to such return, together with the cost of returning the same, shall be at the expensed of Seller. Acceptance of any part of the Order, or partial or full payment therefore, shall not bind Buyer to accept future shipments, nor deprive Buyer of the right to return goods or materials already accepted.
a) INSPECTION AND TEST - All goods or materials furnished under this purchase order shall be subject to Buyer's inspection, test and approval during manufacture, prior to shipment and after receipt, notwithstanding any prior payment.
b) REJECTION AND RETURN - Buyer shall have the right to reject, rework, or require correction of, any goods or materials found to be defective in material or workmanship, or otherwise not in conformity with, the drawings and specifications contained or incorporated in this purchase order, after inspection or test at any time. Goods or materials rejected or required to be corrected will be held by Buyer subject to Seller's instructions, or returned to Seller, at Seller's risk and expense including transportation both ways and all handling charges. Seller shall pay all costs associated with Buyer reworking defective goods due to urgent need provided Buyer first secures written prior approval from Seller.
7) INDEMNITY - Seller shall hold Buyer harmless from and against any and all liability for loss, costs, damages, fines, penalties, and expenses (including but not limited to such liability resulting from personal injury, property damage, rework or recall of Buyer's products, the intervention of any governmental body, and reasonable attorney's fees) threatened, incurred or arising out of any breach of these Terms and Conditions of this Order, or by reason of:
a) The alleged infringement of any patent, trade name, trademark or copyright covering any goods or materials furnished under this purchase order, or in connection with Buyer's use, display advertising or resale thereof, unless the same is not customarily offered for sale by Seller and expressly specified by Buyer; and/or
b) Any improper performance or negligent work by Seller under this purchase order or any allegedly defective material or workmanship in the goods or services furnished hereunder, the failure of any goods or materials furnished hereunder to comply with applicable drawings, specifications or the express or implied warranties of Seller, or the failure of Seller to notify Buyer in advance of any substitution or changes as required herein: and/or
c) The alleged or actual violation by such goods or materials, or the method of manufacture, sale, packaging, or labeling thereof, of any law, statute, ordinance, or administrative order, rule or regulation. In connection with the foregoing, Seller shall upon Buyer's request immediately assume the handling, adjustment and defense of any claim covered by the terms hereof, provided, however, that Seller shall keep Buyer fully informed of all proceedings hereunder. In addition, in order to assure compliance with the foregoing, Seller shall maintain adequate insurance coverage in such amounts and with such companies as are reasonably acceptable to Buyer (naming Buyer as a "named insured" there under), and upon request, shall furnish to Buyer a satisfactory certificate evidencing such insurance coverage.
8) TOOLING - Seller shall provide separate and distinct storage for any and all jigs, tools, dies, patterns, printers plates, or other similar items supplied by Buyer, and shall maintain an appropriate marking on the same including the tool number designated by Buyer, and on the separate storage area, to clearly and permanently identify Buyer as the owner thereof; and such items shall not be used by Seller to perform any work or orders for any other customer. The fact that such items are owned and supplied by Buyer, shall not excuse Seller for failure to meet drawings and specifications as required herein.
9) COMPLIANCE WITH LAWS - For Suppliers to Power Systems in Knoxville, TN, Seller acknowledges and agrees that goods and materials furnished to Buyer hereunder, may be resold, either directly or indirectly, for personal, family or household use. For all Suppliers to any PlayCore company, by acceptance of and performance under this purchase order, Seller certifies and warrants that all Federal, State and municipal laws have been complied with. Seller also certifies and warrants that the goods, materials and services required hereunder will be and have been produced, and services rendered, in compliance with all applicable requirements of Sections 6 , 7 and 12 of the Fair Labor Standards Act, as amended, and of regulations and orders of the United States Department of Labor issued under Section 14 thereof.
10) ON-SITE ACTIVITIES - In case this purchase order applies to services to be performed on Buyer's premises, Seller acknowledges and agrees that Seller’s personnel performing such services shall be deemed to be employees of Seller or independent contractors, not agents of Buyer, and Seller shall provide insurance covering liability to the individuals engaging in the work the public and for property damage. Seller shall furnish acceptable certificates evidencing workman's compensation, public liability and property damage insurance coverage when requested by Buyer. Seller will be required to follow all health, safety and environmental policies set by Buyer. These policies will be reviewed with the Seller during training to take place prior to work being done by Seller.
11) DISCONTINUANCE OF BUYER'S BUSINESS - Discontinuance of, or substantial interference with, Buyer's business, in whole or in part, by reason of fire, flood, earthquake, tempest or other acts of God or by strikes, war, embargo, civil.
12) WAIVER - No waiver by Buyer of any of the terms of this purchase order shall operate to relieve Seller from responsibility for any prior or subsequent breach hereunder.
13) APPLICABLE LAW AND ASSIGNMENT - This purchase order and the Terms & Conditions herein shall be governed by the laws of the State of Tennessee, is not assignable by Seller and constitutes the entire Agreement between Buyer and Seller. Any controversy or claim arising out of or relating to this purchase order or these Terms & Conditions, or the breach thereof, shall be settled by arbitration. The arbitration shall take place in Hamilton County, Tennessee, and Tennessee law shall apply.